Opinion
June, 1932.
Judgment affirmed, with costs. All concur, except Taylor and Crosby, JJ., who dissent and vote for reversal on the law and facts and for granting a new trial on the ground that if the section of the barrier was detached at one end and lowered there could be no recovery against the defendant for the reason that, in the ordinary and reasonable prosecution of the work the barriers had to be removed from time to time, and the risk growing out of such necessary removal of barriers was an incident of the decedent's employment. The trial court erroneously instructed the jury in substance that they could find for plaintiff not only in case they found that the barrier was up and defective, but also if, for any reason, they found that the barrier was down at one end. And there having been a general verdict, it may have been based upon the latter theory. ( Tryon v. Willbank, 234 App. Div. 335.)